With the expiration on August 1 of the moratorium on evictions ordered by the Centers for Disease Control (CDC) to prevent serious public health problems due to COVID-19, and the more limited version announced by the CDC on August 3, many are pointing the finger of blame at either Congress, the Biden Administration, or the states. That finger-pointing is wrong. The fundamental problem has been caused by Trump justices and judges, who have ruled in federal courts that the CDC does not have the authority to enact or extend the temporary ban. This is even though some of them ruled precisely the opposite when Trump was president. As federal and state governments struggle to deal with the dangerous consequences, the situation shows all too vividly why federal judges, and who appoints them, really matter.
The CDC initially ordered the eviction moratorium during the Trump Administration, under the broad authority of a federal law that empowers the agency to “make and enforce” rules and orders that it determines “necessary” to prevent the interstate “spread of communicable diseases.” The CDC specifically found that the temporary ban was needed to mitigate the harmful effects of COVID-19. This was based on studies that showed, for example, that lifting limited eviction bans “led to a 40% increased risk” of COVID-19 among those evicted or people they stayed with after eviction. Although landlords claimed that the CDC moratorium was improper, federal courts upheld it during he Trump Administration, including judges nominated by Trump himself.
All that changed after Joe Biden became president. Several Trump district judges, including one who had rejected an injunction against the ban while Trump was president, ruled that the CDC could not enact and enforce it. Two Trump appellate judges, Amul Thapar and John Bush, upheld such a ruling in Tennessee in July. They claimed that the law did not authorize the CDC moratorium, even though they acknowledged that the DC Circuit had written in June that the broad language of the law “authorizes the CDC’s order.” The DC Circuit had explained that the “plain text” of the law clearly allowed such action based on “expert public health judgments” that the moratorium was “necessary” to “curb the spread of the deadly and quickly spreading COVID-19 pandemic.”
Most damaging of all, the three Trump Supreme Court justices – Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett – made clear at the end of June that they would rule it was illegal for the CDC to extend the ban after July. On June 29, the Court narrowly rejected a request by Alabama landlords to immediately put into effect one of the Trump judge decisions that ruled against the ban. Four justices, including Gorsuch and Barrett, voted to grant that request immediately. Kavanaugh was the deciding fifth vote that ruled against the landlords, but he made clear in a concurring opinion that he also thought the law did not authorize the CDC moratorium. He wrote that he would vote to strike it down if extended past the end of July without new “clear and specific Congressional authorization.”
It was this action that precipitated the current eviction crisis. Experts have explained that it threatens a “rise in cases and deaths” from COVID-19 among more than “7 million renter households,” mostly “households of color, people with disabilities and other marginalized groups,” who may be evicted without a moratorium. It was no surprise that Congress was not able to act in such a short time, particularly given the opposition of Republicans in the Senate as well as the House. Nor was it a surprise that the Biden Administration was concerned that the right-wing Supreme Court, bolstered by the three Trump justices, could not only reject an extension, but might also “endanger other pandemic-assistance programs.” What is absolutely clear in this situation is that the failure of the Trumpified federal courts to uphold CDC’s authority, contrary to what some of them did under Trump, has caused the crisis.
On August 3, the CDC announced a more narrow and targeted ban to protect people most at risk from COVID-19 and the delta variant for several months. This will provide time for rental aid money appropriated by Congress to reach more people and for Congress to consider further action. If the courts respond as they did during the Trump Administration and as the DC Circuit did recently, it should be clear that such action can go forward. It is even more clear, however, that the tragic eviction crisis is a devastating example of why our federal courts matter, and why it is so important who nominates our federal judges.